Pandemic INFLUENZA and Bird FLU: The State of Delaware State and Local Law Enforcement Preparedness

By David B. Mitchell, J.D., Secretary of Safety and Homeland Security for the State of Delaware and Elizabeth Olsen, Attorney at Law and Policy Advisor, Delaware Department of Safety and Homeland Security

ince the early 1900s there have been three flu pandemics in the United States that resulted in a significant loss of human life.1 Many health officials agree that it is only a matter of time before the next in­fluenza pandemic hits in the United States and most predict that the consequences will be severe.

Since 1997, the bird flu, or avian influenza H5N1, has achieved national and international notoriety as a vexing and lethal virus with the potential to produce devastating consequences in pandemic proportions. Over the last three years, ap­proximately 150 million birds throughout Asia and Europe have died or been slaughtered as a result of the spread of the H5N1 virus in the avian population. Of even greater significance is the fact that approximately 147 people in Indonesia, Vietnam, Thailand, Cambodia, and Turkey have been infected by the virus and 78 of those infected have died.

There have been no reported cases of human-to-human transmission of the H5N1 virus, as most of the people infect­ed were directly infected from close con­tact with a bird carrying the virus in what is called a bird-to-human transmission. But there is considerable and justifiable concern over the H5N1 avian influenza virus and its potentially lethal effect on humans. The H5N1 flu virus, like most flu viruses, can mutate rapidly, regenerate quickly (days instead of weeks), and man­ifest itself as something as generic as a cough, sore throat, fever, muscle soreness, eye infections, respiratory distress, and pneumonia or a combination thereof. A person who has become infected with H5N1 flu virus will most likely not realize the extent of his or her illness and conta­giousness. It is impossible to stockpile a vaccine against the virus until it actually mutates into a form tailored for human-to-human transmission. For these rea­sons, national, state, and local officials should proactively develop a prepared­ness and emergency response plan in an­ticipation of an outbreak.

The U.S. Department of Health and Human Services' (HHS) Pandemic In­fluenza Plan, published in November 2005, outlines the U.S. pandemic pre­paredness response to a human-to-human outbreak of the H5N1 avian in­fluenza inside U.S. borders.2 It recognizes the important role state and local law en­forcement agencies have in the overall success of the plan and offers detailed guidance to local law enforcement regard­ing their involvement in the execution of their state and local pandemic influenza plans. Notwithstanding, the plan admit­tedly does not provide answers to many of the questions raised by local law en­forcement regarding their roles in a pan­demic flu situation. In his article "The Pandemic Influenza Plan: Implications for Local Law Enforcement," Lee Colwell underscores the plan's caveat that it does not have all the answers for local law en­forcement and that "each community must develop its own plan in order to be prepared."3

Avian Flu Outbreak in Delaware On February 5, 2004, the Delaware De­partment of Agriculture (DDA) received notification that a flock of chickens on a commercial poultry farm in Delaware tested positive for avian influenza and a second Delaware poultry farm tested pos­itive approximately five days later. At the time of the initial outbreak, the Delaware Emergency Management Agency (DEMA), a division of the Delaware De­partment of Safety and Homeland Securi­ty, already had in place the Delaware Emergency Operations Plan (DEOP) for emergencies arising from natural or human-made disasters. Further, the Del­marva Poultry Industry Inc. (DPI), a non­profit industry association, had already created an emergency disease task force in response to an avian influenza outbreak that occurred in the early 1980s in Lan­caster, Pennsylvania. Although neither flock was infected with the highly patho­genic H5N1 influenza virus, the Delaware Department of Agriculture immediately implemented its emergency support func­tions under DEOP and convened the DPI Emergency Disease Task Force.

Because the transmission of the avian flu virus remained a bird-to-bird transmission, (Figure 1) it was determined that the Delaware Department of Agriculture would be the managing agency. The Delaware State Po­lice, in conjunction with local private secu­rity officers, were immediately mobilized to assist the DDA in

setting up a quarantine of the infected farm,

setting up a barrier to prevent re­porters and other curiosity seekers from trespassing onto the farm, and

providing lines of communication be­tween the DDA, the press, and the public about the status of the crisis.

Although only two farms were affected, local law enforcement had their hands full. Despite the quarantine order and admoni­tions by DDA that it was necessary to stay away from the infected farms to prevent the spread of the virus, reporters attempted to enter the quarantined area through any means available. Some flew helicopters to gain access to the farms; others trespassed at night with night vision equipment to photograph poultry, houses and growers. As difficult as it may have appeared then, in the end, the DDA, in part through the support of state and local law enforcement, contained the avian flu virus to the two farms in Delaware.

What lessons can we glean from the outbreak of February 2004 and how can we incorporate those lessons so that they are meaningful and effective in a pan­demic flu situation? We now know, if we didn't already, that quarantine and isola­tion will not necessarily win the complete cooperation of those who are subjected to the quarantine and isolation or those who are excluded. The outbreak of February 2004 did not require cooperation between the Delaware State Police and local and municipal law enforcement because the infected farms were already within state jurisdiction. In a pandemic flu situation, however, cooperation between the local jurisdictions through the phases of the pandemic will be necessary. Officials should answer the following questions now: Who will be in command of the quarantine and isolation in the event of a pandemic? Under what legal authority will law enforcement act? How far will that authority extend?

The Delaware Emergency Operations and Pandemic Influenza Plans The Delaware Emergency Operations Plan provides state and local law enforce­ment guidance in emergency situations involving natural or human-made disas­ters. Pursuant to Emergency Support Function 13 under the DEOP, the Delaware State Police is the primary agency in command of security and law enforcement in the event of a state of emergency arising from natural or man-made disasters. Before the declaration of a state of emergency, quarantine and isola­tion orders will be enforced by the munic­ipal or county law enforcement agency responsible for providing police service to the jurisdiction in which the natural or human-made disaster has occurred. The respective state police troop will provide support services to deal with the event as it unfolds if the local agency asks for the assistance. Should the situation escalate, mutual aid agreements between the local jurisdictions and the state police may come into play. In addition, Delaware has enacted the Intrastate Mutual Aid Com­pact, which permits state and local law enforcement to cross in-state jurisdiction­al lines to provide or receive aid from neighboring local jurisdictions (20 Del. C. Chap. 32). An agreement to assist between one jurisdiction and another jurisdiction need not be approved by DEMA and may either be verbal or written in nature (20 Del. C. Sec. 3206).

Once the governor has declared a state of emergency, or the DEMA activates the Delaware Emergency Operations Center, and the Delaware State Police becomes the primary agency to coordi­nate law enforcement resources and to establish a task force composed of representatives from each of the local law enforcement agencies affected by the disaster or event. It is the job of the task force commanders to coordinate their emergency law enforcement response, their allocation of resources, and their as­signments of personnel. Furthermore, the task force must prioritize its supporting roles in other emergency support func­tions (ESFs) under the DEOP.

In conjunction with the DEOP, Delaware's Pandemic Influenza Plan, is­sued in September 2005, provides that the Delaware State Police shall act as a sup­porting agency in the way of crowd con­trol, traffic control for vaccination clinics, enforcement of quarantine and isolation orders and directives, and transportation of shipments of vaccines to designated receiving sites.

So how does the law enforcement role under the Delaware Emergency Opera­tions Plan and Pandemic Influenza Plan translate into a realistic, practical, and ef­fective application of state and local law enforcement resources? The Delaware Plan recognizes four escalating periods of an influenza pandemic: the inter-pandemic period, the pandemic alert period, the pandemic period, and the post-pandemic period. Delaware determines its planning and response to each period as it emerges.

Inter-pandemic Period: At press time, we are in the inter-pandemic period. The H5N1 influenza virus is circulating in other parts of the world and may pose a substantial risk of human disease, but the virus has not been known to infect any human beings in the United States.

Pandemic Alert and Pandemic Period: We enter the pandemic alert period after the infection of one or two persons and move into the pandemic period once officials learn of the presence of sustained clusters of infected hu­mans in the general population.

Post-pandemic Period: The post-pandemic period is a return to the inter-pandemic period with a possible heightened phase of recovery, reorganization, and evaluation.

In his January 2006 Police Chief article, Lee Colwell identifies three levels of a pandemic flu outbreak in which law enforcement will play key ro les in assisting and managing the control and containment of the H5N1 flu virus: (1) the individual level, (2) the community level, and (3) the state and national level, espe­cially in regard to travel-related risks within and across state borders. These three levels coincide with the pandemic alert and pandemic periods described in the Delaware Plan.

Generally, it is not anticipated that there will be a declaration of a state of emergency at the individual level, or the beginning of the pandemic alert period, where one or two persons are suspected to be, or are, infected with the H5N1 flu virus. In that case, the director of the Delaware Division of Public Health, or his or her designee, must petition the ap­propriate court to order the isolation or quarantine of persons. Once the order has been obtained, the enforcement of any directives or orders for isolation and quarantine shall be handled by the law enforcement agency or municipality primarily responsible for providing police services to the jurisdiction in which the H5N1 flu virus has presented itself. The Delaware State Police and other local law enforcement will provide support services when the local or municipal law enforcement agency can no longer main­tain control of the emergency situation without assistance.

The role of the Delaware State Police and local law enforcement will initially be to control and reduce the spread of the virus and may range from enforcing an isolation and quarantine order of a small group of persons to enforcing orders to close schools and businesses, cancel events, and restrict travel.

Once the spread of the virus has esca­lated to a point that warrants either a state of emergency or the activation of the Delaware Emergency Operations Center, the Delaware State Police will become the primary agency in charge of managing and coordinating local law enforcement resources. Once the virus escalates to the pandemic period, or phase where there has been an increased and sustained transmission of the virus in the general population, isolation and quarantine may no longer be an effective means of controlling the spread of the disease. At this juncture, the Delaware State Police, in coordination with local law enforcement, will provide support for the transporta­tion of vaccines to designated receiving sites and to the transportation and treat­ment of infected individuals. State and local law enforcement may have to pro­vide security at receiving sites, hospitals, and acute care centers. To prevent the spread of the disease and minimize over­crowding at hospitals and acute care cen­ters from infected persons who self-re-port, law enforcement may be called upon to restrict travel between local jurisdictions and along the state's borders. The Delaware National Guard and other federal assistance will be deployed to aid state and local law enforcement.

Although a simple reading of the DEOP and the Delaware Pandemic Influenza Plan suggests that Delaware has developed an orderly process on which local law enforcement can rely, there still remains a lot of work to be done. Delaware recognizes that the ability to create a "seamless force fully prepared to respond to the threat at hand" directly affects the success of any preparedness plan. Delaware's respective agencies have come together in an effort to close the gaps in their preparedness plan.

Legal Authority and the Court Process Delaware enacted the Emergency Health Powers Act, which provides that either the Public Health Authority or the Public Safety Authority may obtain an isolation order, a quarantine order, or both if it has been established by clear and convincing evidence that the person or persons to be isolated or quarantined pose a significant risk of transmitting a disease to others with serious conse­quences. The order may be obtained re­gardless of whether there has been a declaration of a state of emergency by the governor. Furthermore, a directive may be issued by either the public health authority or the public safety authority that would permit state and local law en­forcement to detain the person or group of persons pending the issuance of an iso­lation or quarantine order. To ensure that isolated or quarantined individuals are not denied their due process rights, a hearing must be scheduled within 72 hours. If it is determined that the isolation or quarantine must continue beyond 72 hours, the individuals have the right to re­quest a hearing within 10 days.

Currently, the Delaware Department of Safety and Homeland Security and Divi­sion of Public Health are drafting form pe­titions for ex parte quarantine and isolation orders to help expedite the process of obtaining orders under which law enforce­ment can legally act. The goal is to create forms easily recognizable to a judge or clerk of the court as urgent. Furthermore, both agencies are working with the courts to establish a judge-on-call who would be the primary responder to an emergency petition to quarantine or isolate.

Although the judges in Delaware are not considered first responders, they play an important role in determining what legal authority law enforcement has to en­force a quarantine or isolation order and to the extent of that legal authority. It is further expected that judges will continue to play a role during a pandemic as they will be asked to issue other orders such as orders of contempt against those persons who violate the quarantine or isolation orders or to determine law enforcement's authority to, for instance, restrict travel across state borders. Currently, efforts are being made to protect judges from being exposed to the virus when they are called upon to preside over hearings related to quarantine and isolation orders. For ex­ample, there is the possibility of conduct­ing hearings from a remote location through videoconferencing. The question remains whether judges who are desig­nated to handle this type of emergency situation should be considered and treat­ed as first responders.

Transmission of Information and Effective Communication Under the DEOP, the Delaware De­partment of Safety and Homeland Securi­ty, in conjunction with its division, DEMA, and the Delaware State Police are designated as the primary agencies for keeping the lines of communication open between agencies and the public and dis­seminating accurate information to the agencies and the public as a pandemic un­folds. The DEOP anticipates that commu­nications shall be conducted through the use of telephones, cellular phones, radios, facsimile, pagers, television, newspapers, and computer systems. During an ex­treme emergency condition, officials may use messengers.

The Department of Safety and Home­land Security is also using state-of-the-art telecommunications technology to create a center from which information and intelli­gence data may be received, analyzed, processed, and disseminated to the private and public sector in a consistent and reli­able manner. The Delaware Information Analysis Center (DIAC) will be key in maintaining open lines of communication between state and local law enforcement and other first responders during a pan­demic crisis. For instance, the DIAC will en­able first responders to determine which hospitals have open beds, which morgues have space for the deceased, and so on.

Delaware has also been involved in other projects to enhance the state's ability to stay informed of events as they unfold throughout the state and to allocate re­sources where they are most needed. For example, DSHS is developing a geographi­cal information system (GIS) and looking at the option of installing global positioning system (GPS) and automatic vehicle locator (AVL) devices in all modes of transporta­tion used by first responders. These pro­jects will be incorporated into the DIAC.

If we look back at the events of February 2004 surrounding the avian flu outbreak in Delaware, one of the lessons learned was the importance of transparency, of creating good media relations by making oneself available to the public with a clear, united message and continuous and timely up­dates of that message. Doing so not only provides for an orderly process for dissemi­nating accurate information and rumor control but also reduces public anxiety.

Ongoing Law Enforcement Concerns State and local law enforcement agen­cies are working with the Delaware Divi­sion of Public Health to ensure that they, as first responders, and their families re­ceive antiviral vaccinations that should offer protection against the virus. Leaders of law enforcement have made it a priori­ty to educate their personnel in regard to the H5N1 avian flu virus and the effects of a vaccine, all under the premise that edu­cation and dissemination of accurate in­formation will reduce the level of a first responder 's uncertainty as to whether, when, and how he or she should act or react in situations where he or she is in close contact with infected persons.

Although state and local law enforce­ment must use whatever for ce is reasonable and appropriate to ensure compliance of orders and to protect the public interest, it is also imperative that they be educated on the definition of "rea­sonable and appropriate force" and that a consistent policy regarding use of force be developed, implemented, and exercised by state and local law enforcement.

State and local law enforcement de­partments, in conjunction with the Delaware National Guard, DEMA, and other agencies, have conducted extensive drills and tabletop exercises to determine how best to allocate their resources in the most efficient and effective manner. The Delaware State Police anticipate that they will continue to work with local law en­forcement to provide security to receiving sites, hospitals, acute care centers, and so on. As the pandemic increases, state and local law enforcement will still have to address daily crimes but may choose to limit their responses to criminal activity to the more serious calls for service. Those officers traditionally on patrol will remain on patrol as the primary responders to traditional criminal activity, while other forces in the Delaware State Police and other local law enforcement agencies may be deployed to handle events pertaining to and surrounding the flu pandemic.

The success of the Delaware Pandemic Influenza Plan, and any other pandemic in­fluenza plan, depends on the cooperation and coordination between law enforce­ment and other agencies on the national, state, and local level. Effective forms of communication and accurate dissemina­tion of information as the pandemic pro­gresses will lessen the chance of overstating or understating the risks inherent in this type of a crisis. One thing is for certain: we must stay ahead of the H5N1 avian flu virus. Constant preparation, planning, test­ing, and development of Delaware's Emer­gency Operating Plan and Pandemic In­fluenza Plan will result in an effective and meaningful preparedness and emergency response plan to the pandemic flu.

1The last influenza pandemic occurred in 1968-69. During the 20th century, the emergence of several new influenza A virus subtypes caused three pandemics, all of which spread around the world within a year of being detected. The 1968-69 influenza pandemic, called the Hong Kong flu [A (H3N2)], caused about 34,000 deaths in the United States. This virus was first detected in Hong Kong in early 1968 and spread to the United States later that year. Influenza A (H3N2) viruses still circulate today. The 1957-58 Asian flu [A (H2N2)] caused about 70,000 deaths in the United States. First identified in China in late February 1957, the Asian flu spread to the United States by June 1957. The highest number of known influenza deaths from pandemic influenza occurred in 1918-19 with the Spanish flu [A (H1N1)]. More than 500,000 people died in the United States, and as many as 50 million people may have died worldwide. Many people died within the first few days after infection, and others died of sec­ondary complications. Nearly half of those who died were young, healthy adults. Influenza A (H1N1) viruses still circulate today after being introduced again into the human population in 1977. Both the 1957-58 and 1968-69 pandemics were caused by viruses containing a combination of genes from a human influenza virus and an avian influenza virus. The 1918-19 pandemic virus appears to have an avian origin. Source: U.S. Center for Disease Control and Prevention, Atlanta, Georgia, (www.cdc.gov/flu/pandemic/qanda.htm), January 10, 2006. 2In the United States, view the plan at (www.hhs.gov/pandemicflu/plan/). In Canada, view the influenza plan at (www.phac-aspc.gc.ca/cpip-pclcpi/). In the United Kingdom, view the influenza contingency plan at (www.dh.gov.uk/PolicyAndGuidance/EmergencyPlanning/PandemicFlu/fs/en). 3Lee Colwell, "The Pandemic Influenza Plan: Implications for Local Law Enforcement," The Police Chief 73 (January 2006): 14-17.

From The Police Chief, vol. 73, no. 2, February 2006. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.

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